El Pocho Abogado

Instead of tearing families apart...

Monday, September 20, 2010

I saw this NY Times article today and was horrified. The gist of the article is that a woman (4th generation U.S. Citizen btw) went and talked to border patrol about getting her baby daddy deported after they had a fight. The baby daddy was wanted in connection with a murder. In exchange for information on him, she wanted border patrol to return her baby (a 5th generation U.S. citizen), which baby daddy was apparently keeping from her. Border patrol thought this sounded like a good idea and agreed to help her.

Border patrol took the information she gave them, went and got the guy, renneged on the deal, and deported the baby b/c it would have cost too much to keep the kid 24 hours so that mom could get the proper court order. How much is too much to keep the border patrol from deporting an US Citizen? Apparently $200.00.

Mom found out they sent the kid to Juarez, Mexico but wouldn't tell her more than that. Juarez isn't the safest city in the world. This article from the El Paso times puts the death toll for this year at 2,000 people. The violence is so bad that the turn out for Mexico's Independence Day was bigger in El Paso than it was in Juarez. And border patrol sent her there with someone involved in a murder case, against the Mother's wishes.

So, when Mom got her baby returned to her she sued border patrol. And the court denied her case. They dismissed her motion under a federal rule that says the court doesn't have any power to hear cases like the one mom filed. That rule is 12(b)(1). Mom appealed to the 5th Circuit Court of Appeals. They sided with the trial court and found for border patrol.

But three judges on the panel of 17 judges dissented. They said the court misunderstood the case law in this case. They say the court does have the power to hear this case. The federal government isn't immune from lawsuits when it does something as spectacularly wrong as deporting a US Citizen. They say it was a violation of both fourth and fifth amendment rights of the child. The dissenters said that it was an abuse of power to deport a U.S. Citizen.

One dissenting judge says technically the child wasn't deported b/c she went with dad, but border patrol may have violated some other right of the child and for that reason the court had the power to hear the case. I disagree with him b/c dad did not have the power to take the child to Mexico without mom's permission. You can read all about it at the State Department's website. It's in this section here. So, if Dad didn't have the legal power to take the child to Mexico, and mom objected to the child going to Mexico, that leaves only the border patrol imposing their decision on a US citizen.

But that's not the worst part of this. The worst thing about this case is that if the Supreme Court rules for border patrol, it will limit our recourse if border patrol deports us. Border Patrol can go around deporting any US citizen it wants to and no one can do anything about it b/c their lawsuit will be dismissed. This was actually a problem during the Chinese exclusion era. The government would hold people in jail or deny them entry to the U.S. and nothing could be done about it. Some of these cases were used as justification for Guantanamo by Bush.

I think the SCOTUS might actually rule for border patrol too. The court's history of protecting minority rights comes and goes. The court's history of protecting immigrant rights, or even treating them like human beings, is terrible. Just read the Chinese exclusion cases.

The court also likes to strengthen sovereign immunity (a legal doctrine that says the sovereign, i.e. the government, can't be sued) whenever they can. If they rule that way they'll try and say the facts in this case are so peculiar that it probably won't apply more broadly than in this instant case. The problem is once there is a case in existence, there is always the opportunity to expand the powers created under that case or limit your rights to challenge government's violation of your rights. That's where it gets dangerous. If there are three or four outlying cases like this, pretty soon you have a new legal doctrine.

Another problem is that they'd be wrong about the likelihood of this happening again. Anyone familiar with the family court system knows that there are a large number of families with mixed immigration status. There are frequent attempts to get the non citizen parent deported. If that parent could just choose to take the kid with them it would cause all sorts of problems. International parent abduction is already a big problem with no real solutions. If the court lets ICE or border patrol off the hook here, they're only inviting the problem to get worse.

Thursday, September 02, 2010

14th Amendment

So, a bunch of Republicans are calling for hearings to study whether or not the 14th Amendment should be repealed. If you don't remember, the 14th Amendment does a whole bunch of stuff, like guarantee due process and equal treatment before the law, get rid of the 3/5th's clause, and prohibit state governments from paying back debts they incurred to wage insurrection.

Overall it's a pretty popular amendment. Most people enjoy that they can't be forced to ride in the back of a city bus based on their gender or skin color. That's not the problem these Republicans have with the 14th Amendment, at least that's not the problem they're currently focusing on. They want to eliminate birthright citizenship. The 14th Amendment grants citizenship to anyone born in the United States of America. The Republican's objections to this is the usual crap about anchor babies and immigrants sneaking into the country to get benefits. One especially off kilter congressman believes immigrants might even be having terror babies!

Anyway, when they started this crap up I thought about all my cousins who are in the military. At one point I had 4 cousins in Iraq or Afghanistan. These are children of immigrants. These are the people who's citizenship they want to take away. Then I wondered how many Latino troops are in the gulf? It turns out quite a few. According to this website, before we even get to the children of immigrants, there are about 65,000 foreign born people serving in the military. And Mexico seems to be providing the most of those foreign born troops.

Another article from U.S.A Today says that Latinos make up about 9.5% of the total military force, but are 17.7% of combat troops. According to wikipedia we're only 15% of the total population of the U.S. This is a projection, the last actual data the census has is from 2000 and at that point we made up about 11% of the U.S. population. And if you're wondering where Latino's are serving, apparently it's in the harder jobs. The Marine Corps has a disproportionately larger number of Latinos than other branches, and a higher casualty rate.

Now, I know not all Latinos are the children of immigrants, but most of us are. I found this statistic that says 58% of Latino children live in a family with one or more foreign born parents. So, has congress thought about the impact hope of repealing the birthright citizenship would have on the military? It's not easy to replace over 10% of your front line troops, and that's just rough extrapolation. There could very well be a correlation between the children of foreign born parents and the likelihood that they end up as combat troops.

Someone needs to ask these congressmen how they plan on fighting their wars without the children of immigrants? And, how it is exactly, that they support the troops when they're here safe and comfortable and trying to undermine the legitimacy almost 20% of the frontline troops citizenship?

El Pocho Abogado is an attorney and it's go time. He revels in the springeresque world of domestic relations law and is no longer able to be shocked. He's currently scanning myspace for pictures of opposing parties doing bong hits with their children. He would like some Carne Asada Tacos. He is interested in Rock N Roll, the news, and La Causa. If you are new wave then he is single. Email El Pocho Abogado